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Guest Post: Spousal Support: Heads She Wins, Tails He Loses

I have been a fan of Ontario lawyer/writer KAREN SELICK (karenselick.com) for many years and appreciate her “tell-it-like-it-is” approach to some of Canada’s absurd laws. Karen wrote the piece below on spousal support seventeen years ago in the November, 1997 issue of “Canadian Lawyer”, when the Spousal Support Advisory Guidelines were nothing more than a law professor’s dream. Enjoy!

“The law of spousal support has become so repugnant to me lately that I often ponder giving up the practice of family law altogether. It’s almost impossible to feel good about what you’re doing. If you act for wives, you have to inform them about the kinds of claims they can make—including claims which I consider to be unjust or downright ridiculous. If you act for husbands, you have to be prepared to be on the losing side most of the time.

It seems that no matter what course a couple’s married life took, the wife can always find some reason to claim spousal support. If she worked outside the home and supported her husband while he became a brain surgeon, her claim is for “compensatory support.” If she did just the opposite, sitting around eating bonbons while the brain surgeon supported her, her claim is for “developing a pattern of economic dependency.”

I’ve even seen cases where the wife has claimed both grounds in the same action, oblivious to the possibility that the bonbon-eating lifestyle she enjoyed in the later years of marriage has already more than compensated her for whatever work she did in the early years, or to the idea that if she was such a great provider in the early years, there was nothing stopping her from maintaining her lucrative career throughout the marriage.

In fact, the only common thread running through most support orders is this: males pay.

I remember reading once about the peculiar notion held by some eastern philosophy that if you rescue a person from impending death, you become responsible for him for the rest of his life. Canadian courts seem to apply a similar prescript to support cases. Once a man has kindly provided a woman with a higher standard of living than she could reasonably have hoped to achieve on her own, he’s stuck with providing it for years to come—maybe even the rest of her life–regardless of how she has behaved toward him or the reason they separated.

The Divorce Act enshrines this principle. It tells judges to alleviate any economic disadvantage arising from either “the marriage or its breakdown.” That “or” is a powerful word. Suppose the marriage gave the wife an advantage rather than a disadvantage: a more affluent, leisured lifestyle than she would have earned on her own. Then, obviously, the termination of the marriage constitutes a disadvantage.

If a man genuinely caused his wife some disadvantage during the marriage, he pays for that reason. But if instead he bestowed an advantage upon her, he pays for having stopped. Heads she wins, tails he loses.

Another objectionable thread woven through both the legislation and the case law is the notion that if a woman can’t support herself after separation, the courts should make her ex-husband support her rather than see her go on welfare. Maybe the legislators and judges who came up with this idea thought it would placate opponents of welfare. If so, they’ve misunderstood the nature of the objection to welfare.

Welfare is objectionable because it is coercive and one-sided. It’s not like charity, which is voluntary. It’s not like a contract, from which both parties benefit. No, welfare simply forces some people to hand over money to others whose predicament they didn’t cause and who have provided no value in exchange.

The same could frequently be said about spousal support. Take, for instance, the recent Ontario case, B. v. B. The trial judge accepted the husband’s evidence that this was a marriage “made in Hell.” The wife, whose IQ was only 68, didn’t work outside the home, but also didn’t do housework. She watched a lot of television, while the husband assumed responsibility for cooking and cleaning, in addition to being the sole breadwinner. They argued a lot, and she was occasionally violent towards him.

The trial judge awarded her only time-limited support, saying “…this husband started to pay for this marriage about three months after it occurred, and then he paid for the next 15 years, and I am not prepared to make him pay for the rest of his life.”

On appeal, the Divisional Court removed the time limit on the wife’s support, stating explicitly that the burden of the wife’s support should fall on family members, not on taxpayers. Why? What principle of justice or morality warrants making Mr. B. pay, as opposed to some unrelated taxpayer? Neither of them caused the wife’s need for support. Neither of them ever received any benefit from her existence.

In fact, we’ve thrown out just about every principle there ever was—from the notion of contract to the notion of fault—that made matrimonial law rational, comprehensible, predictable, controllable or just. While some people may feel that no-fault support has been a liberating event, it’s clear that for others, it has meant nothing but grief and involuntary servitude.

It’s about time we re-examined the unfashionable idea of marital conduct to see whether justice can ever again form part of matrimonial law.”

A little surprised that you would support such a narrow minded argument. First of all the writer does not account for the fact that “staying home” is a job that is unpaid and has been unpaid- women’s unseen work. Child rearing and domestic engineering is a job that is not only unpaid but disrespected mainly not by men but by other women such as the writer. Women that stay home make a choice and that choice needs to be respected by society and honored as being just as important as working for pay. That is what the law is trying to achieve but with women that tear other women down and refuse to accord respect to mother’s such as the writer’s this is tough going. Many women give up careers as professionals to stay home and raise the children. Their job is in the home. Time to accord respect to them.

“Will there be a grassroots movement in Canada to rethink spousal support in light of the reforms south of the border? I think it’s inevitable. Laws that are paternalistic and punitive have no place in modern Canadian society, however, stay-at-home moms must maintain their elevated position, even in the face of spousal support reforms”

JM The above quotation is from an article of mine published in The Huffington Post in 2011. I agree with you that stay-at-home moms are entitled to support based on “compensatory” factors including the sacrifices they make in their professional lives to care for their children and their spouse.

Your comments make me think that you’ve not been put through the process that is the ridiculous Canadian family law courts .. Or you were lucky to have an willing ex to reach a fair agreement most likely with the help of a mediator. My expierence was the most horrible thing imaginable.. at the hands of an extremely aggressive female lawyer who would stop at nothing to be sure that I lost everything .While I believe in equality in gender roles in all aspects of a relationship ..the courts view the man with an unobjective bias to getting a fair deal.. Your pretty much done when you get in there…based on traditional gender roles..it’s a joke.. My ex wife and her lawyer went so far to lie to the court that she was a stay at home mom..when in fact we both worked full time during our marriage.. and these judges bought it.. I paid it all.. lost everything .. every penny.. and didn’t see my child for over 6 years…!

wow, what a biased article. You just insinuate the wife (leisurely eating bon bons on her lazy ass) is attempting to milk the poor hardworking hubby. Can’t make blanket assumptions on relationships. You’re out of reach with the real world.

Beth, if you have a male child and he would be exposed to what many men are exposed in the Canadian system, you would have another idea. I do believe in freedom, not slavery.
This article is trying to define the close similitude of the Canadian Family Law and slavery.
If you want to go out, go out, but why should another human being pay for YOUR decisions?

Eventually unfair rules will collapse the Canadian Family Law system, I do agree in one spouse helping the other one, however, the terms indefinite support and parent alienation are so common… I am divorced and I had sole custody of two kids… however I do pay alimony to a woman that is not trying to be independent at all, and the Canadian courts are ok with that… of course I did get an amazing result as my dauthers live with me 100%…. but it does hurt a lot that even when my ex is a lawyer she is not forced to find a job or an income. Many of my friends are over 20 years marriages and single dads too… not all, but many people, especially woman use the now feminist-favortism courts to use marriage and divorce as a source of free income.

Until marriage is reinvented- until women are paid a wage and salary to stay home and care for the home and children and until this is designated as the most important and highly respected career by the current patriarchal system the law can only try to fashion solutions to what is a system that punishes women for being stay at home mothers. Men that treat women as workhorses to get them through their early years of career and family and then dispose of them for a younger prettier version need to understand that their conduct is at the root of the problem created when a woman is told to stay home and not work in the workforce. The system is unfair to both sides- and there needs to be a different approach but that approach must come through society’s recognition of women that stay home as key to the success of a society as caregivers of the next generation. Young women today will not stay home because of the consequences that are paid in loss of independence and dignity and the lack of respect from our western society for mothers and their work. Women have been seen as commodities and disposable for too long and it is time for this to change- but this will only change when the currency of exchange is not human slavery. Unfortunately our entire society is built on the idea of human bondage and slavery- from servants to the sexual slave trade. We have not evolved very far from the time of slaves no matter how much we try to pretend we are a civilized society. As for the cowboy above who sees “feminist favoritism courts” and using marriage and divorce as a source of free income” as what women are all about– reads like code for: I am a misogynist. Hope he doesn’t have daughters.

I will respectfully disagree with the above reader, as we are talking about a concept in works that is not promoting well-being, but rather promotes evil behavior and if you think the Canada Family Law is not one sided,let’s be OBJECTIVE and leave our SUBJECTIVE approach on the bench for a moment:

I would like to state that I am an engineer not a lawyer, and English is not my first language but Spanish, therefore I do apologize for the bad use of the verbs at times in my response.

I would like to mention that I do appreciate this post and the opportunity that it represents, in order to denounce or expose the privacy invasion that is imposed by the Family Law Courts in the lives of many Canadians, and in my sole opinion is a trend that will move Canada towards a Marxist society, based on equality that will encourage lazy people to remain lazy and other people to remain slaves of the lazy people (example, Cubans prefer NOT to work since if you work you get the same government help vs working, therefore, why work?).

Canadian Family Law resembles Marxism as Karl Marx wrote:” From each according to his abilities, to each according to his needs.” Canada family law promotes the slavery of one towards the laziness of another person, especially when it comes to indefinite orders.

You say “Until marriage is reinvented-“, the problem is not the marriage, the problem is that when one person does not want to be with another person, the government should not punish either party for making a FREE CHOICE decision, the current laws are penalizing a person (male or female but 93% of the time male), to become the slave of the other one, in several cases of work and life of my friends: moms leave the house and abandon the kids as they know there will be no consequences, they are legally protected, or use the kids as leverage to obtain unfair settlements that are supported by a biased radical feminist trend that has created not only rules that on paper are just but that in its application are biased and have created so many MALE victims, leading to SUICIDe or at the border point of committing such an act.

Is that what we as a free advanced society see as something better than the radical Muslim laws in Saudi Arabia?
I would say that radical feminists compete very closely with radical Muslims in the destruction of our western society and even worse, they help Satan in the destruction of the main nucleus of society, the family. If you do not get punished for your bad behaviors, like in the Brampton Ontario case of a man paying alimony to a wife that inserted 6” of butcher knife in his chest, but survived the incident and yet the Family Law court ordered him to pay indefinite alimony , is that just?

Reference:
What actually goes on in Canadian courts today? Consider the Brampton, Ontario husband who was abused by his wife, both physically and emotionally, for 20 years. Among other things, he alleged she had once butted out a burning cigarette on his body. The relationship finally ended when she plunged a butcher knife six inches into his chest while he slept. Fortunately, he survived—to find himself paying support of $1,500 per month to his attacker. Reference from: http://www.karenselick.com/CL9801.html

I am trying to make this comment impersonal, because this issue goes further than your case our my case, it’s like a cancer in our society that nobody is willing to remove, but You also mention that women should be paid a wage and salary to stay home. I am not sure where you find this economic model, but this is what I would say, one works and shares the bank account with the other one that stays at home and takes care of the kids and home, that seems very just to me. And when the kids grow up and you want to be a nurse, teacher, lawyer or engineer, just go to school at the same time your kids go to school. But I am intrigue by this comment, it seems totally irrational.. How do you think this can occur? Can you expand this position?

For the women that will read this, I would like to declare that I do consider woman smarter and better than men in every way except in physical strength, the best things in my life have happened via my mother, my ex-wife and my two daughters, but again, I have friends and family that has been exposed to Canada Ontario Family law and I find it very unfair and evil and one sided.

And I do not know why some women think it is fair that one salary that was used to maintain one household is enough to maintain now two households and maintain two homes indefinitely. Where are the human rights of the vast majority of men affected by this disgraceful slavery system that affects so many and is making people avoid marriage and the eradication of families in general.

I am 49 years old, and even when we have being exposed to this repugnant invasion of personal privacy by the government, I have never heard a man speak bad about stay at home moms, just the opposite, all of us think it is the most honorable and talented job a person can have.